A Role for Congress to Reclaim—A Commentary by Bruce Ackerman ’67

The following commentary was published in the Washington Post on March 11, 2009.

A Role for Congress to ReclaimBy Bruce Ackerman ’67

For the first 150 years of our nation's history, the Senate confirmed all leading members of the executive branch. But modern presidents have increasingly gained the power to make key appointments unilaterally -- with President Obama taking this process to new heights. His White House czars such as Lawrence Summers and Carol Browner are likely to overshadow the Cabinet secretaries in their respective domains. Yet, as presidential assistants, they escape the need for Senate scrutiny. After the abuses of the Bush White House and the failed nominations in Obama's own transition, this practice should be reconsidered.

Until 1939, the Cabinet was the only game in town. There was no such thing as a White House staff. The president had a few personal secretaries, but he governed through his Cabinet officers.

Then, Franklin Roosevelt campaigned for the statutory authority to appoint six administrative assistants. His proposal arose from a study group headed by public administration consultant Louis Brownlow. In an attempt to pacify critics, Brownlow noted: "These aides would have no power to make decisions or issue instructions in their own right. . . . They would not be assistant presidents in any sense."

Brownlow explained that the proposed White House staffers would act behind the scenes to provide the president with the information necessary to make decisions. Their principal qualification would be a "passion for anonymity." And because they would exercise no decision-making authority, it would be pointless to require their confirmation by the Senate.

It hasn't worked out that way. Consider, for example, the treatment accorded Eric Holder as attorney general and Gregory Craig as counsel to the president. Holder was carefully vetted by the Senate, and his work in previous administrations was the subject of much debate. Yet Craig, who will also be involved in important and public legal matters, largely escaped scrutiny. Why?

Craig, a distinguished lawyer and public servant, is an outstanding choice for his key position. But it is not enough to trust the president to make good appointments. The challenge is to make it difficult for future presidents to appoint less-qualified officials -- such as Alberto Gonzales or Harriet Miers -- without serious outside review of their credentials. That, after all, is the aim of our system of checks and balances.

This curious constitutional scenario is playing out again this week. At the same time that the Senate pores over Kathleen Sebelius's qualifications to be secretary of heath and human services, Nancy-Ann DeParle, Obama's choice for director of the White House Office of Health Reform, will escape serious scrutiny. Yet DeParle will also play a commanding role in health-care reform, and her record is less well known than that of Sebelius.

Recall that Obama marked Tom Daschle for special prominence by nominating him to be both Cabinet secretary and White House health reform director. If Daschle had taken only the latter position, his tax problems might never have come to light, and he could already have been serving as a major policymaker.

Louis Brownlow's committee did much good in staffing the executive branch, but we should rethink the false promises he made at the outset. To start, we need to seriously consider requiring Senate approval of senior White House staff positions. To allow for thoughtful bipartisan deliberation on this proposal, the present administration should be exempted.

The reassertion of senatorial prerogative should begin with the presidency inaugurated in January 2017 -- a moment when the Obama administration will be history and it is anybody's guess who will control the White House. By deferring the date the reform would take effect, lawmakers would place themselves behind a "veil of ignorance" that prevents partisan advantage and encourages them to take the long view of whether senatorial confirmation is appropriate in terms of constitutional design.

There will never be a better time to consider whether the ideas of James Madison or those of Louis Brownlow should govern the relationship of the Senate to the White House. If we don't seize this moment, the spirit of the imperial presidency will continue to erode the system of checks and balances.

The writer is a professor of law and political science at Yale University.